Distinção e superação dos precedentes judiciais no processo civil brasileiro: garantia aos direitos fundamentais do contraditório e da fundamentação

Abstract

The proposed study is aimed on investigating the Brazilian theory of judicial precedent, established by the Civil Procedure Code of 2015, from the constitutional model of due process. From this, the study seeks to examine whether, in the current Brazilian legal system, there are institutions and mechanisms that although predicting the binding application and/or enforce compliance with the case law, allow the application of techniques for the distinguishing and overruling of judicial precedents in order to ensure the fundamental guarantees of the contradictory and grounded decisions. It examines the effects, the formation and the application of judicial precedents in the Brazilian legal system, in order to establish a constitutionally appropriate manner for the exercise of case law. Finally, the research critically analyzes if the Brazilian theory of judicial precedent provides means to prevent automatic and mechanical application of legal theories and to preclude the inflexibility of the interpretation of law, ensuring the use of case law in accordance with the procedural constitutional guarantees.